Hantian Zhang
Authored By: University of Manchester
Introduction
The Offences Against the Person Act 1861 (OAPA 1861) is a foundational piece of legislation in English criminal law that consolidates and codifies various non-fatal offences against the person, such as assault, battery, actual bodily harm (ABH), and grievous bodily harm (GBH).[1] This codified law was applied successfully for many years. Judges adapted the law to change social conditions and enforce important moral values. More recently, judges have proved unable to develop the law on a principled or moral basis, especially when determining the circumstances in which consent can provide a defence.
The essay will critically discuss reasons why the modern judiciary has struggled to develop principled or morally consistent rules, particularly regarding the role of consent as a defence from two dimensions: the moral inconsistency in judicial reasoning on consent and the structural inadequacy of OAPA 1861 and its impact on consent doctrine.
Moral Inconsistency in Judicial Reasoning on Consent
Judicial decisions on the defence of consent are morally inconsistent due to the judicial bias of judges.In the case associated with consent, the current law on consent is too deeply uncertain to articulate a consistent principle that distinguishes acceptable from unacceptable harm. So, the decision of a case relies more on judges’ subjective assessment rather than the legal principle. For example, in R v Brown, consent was held invalid in sadomasochistic sexual activity among adults, based on public morality.[2] Such a decision rests more on judicial moral instinct than on the legal doctrine. However, the law refuses to accept consent as a defence against same-sex sadomasochism while allowing it in boxing, even if boxing has a higher possibility of causing more serious harm. It demonstrates moral double standards rather than a unified principle. The different subjective analysis of judges may create standards controversial with each. So, without a statutory framework to guide the scope and limits of consent as a defence, the judges have to use subjective decisions with unavoidable individual and social bias in the court. This is the obstacle against developing principled or morally consistent rules in consent.
Some critics may think that establishing a clear and unified standard creates opportunities for criminals to circumvent legal standards. For example, in R v BM, the judges rejected the defence of consent to body modification for the sake of public safety.[3] So, the judiciary must restrict consent in harmful conduct to protect public welfare and prevent the normalisation of violence by giving specific judgement, based on case condition.
Although codifying consent standards may enable tactical abuse by defendants, it cannot be an obstruction to correcting a deeper problem in the judiciary’s reliance on subjective moral assessment through clear standards. The concern that defendants may exploit legal boundaries is not an argument against precision in law. It should be addressed by legislatures to draft more rigorously.[4] Moreover, without legislation, personal subjective assessment will push criminal law to devolve into moralism, driven more by repulsion than by reason.[5] It will undermine the consistency of the law[6] and result in a series of unpredictable and morally fraught judgments[7], which is controversial with the rule of law.
So, the lack of legislative clarity makes the judges overly rely on their subjective disapproval of private morality[8], which illuminates that establishing a clear standard to consent is necessary.
Structural Outdated Legislation in the OAPA 1861 and its Impact on Rule of Consent
Apart from the inadequacy of the legislative clarity in defence of consent, the outdated legislation in OAPA 1861 also causes the challenge in developing principled or morally consistent rules of consent as a defence. The Act is nearly two centuries old and includes many outdated terminologies, such as “maliciously” which uses archaic terms that are difficult to interpret consistently.[9] Those relics in the Act introduce overtones and vagueness[10] because they lacks modern precision in understanding. It can be stretched across different context without doctrinal coherence.[11] For example, in R v Cunningham [1957], “maliciously” is the same as “recklessness”, which is controversial with the meaning of it in the precedent of Parmenter. Faced with outdated words, the judges have to make a subjective understanding of words like GBH and consent based on the specific case condition, which reduces the consistency between case decisions. It consequently leads to doctrinal and moral uncertainty and hinders the principled development of the modern defence of consent.
But, some critics may think that the outdated language in the OAPA 1861 is not be decisive obstacle against principled development of law. The judiciary in common law has develop some principles of defence of consent. The resilience of judge-made law lies in its ability to incorporate emerging social values into existing doctrinal structures.[12] Such flexibility in the common law system can compensate for the legislative inertia, which means judicial adaptation, though imperfect, has allowed the OAPA to remain effective to address modern criminal problems.[13] For example, in R v Dica, despite the vagueness of language in terms of harm caused by sexually transmitted diseases, the court held that knowingly transmitting HIV could amount to grievous bodily harm and clarified that informed consent could be a defence. Therefore, while the OAPA 1861 is undeniably outdated in terminology, its structure does not absolutely hinder the principled development of consent doctrine. Judicial interpretation still allows the principled development of the modern defence of consent in the evolution of social context.
The core of the counterargument is that judicial creativity can overcome the outdated language in the Act, but such an interpretative way of judgment lacks certainty and universal applicability, causing the fragmentation of legal principles. It further undermines the principled and predictable development of law. Admittedly, judicial creativity can give an updated interpretation of the law, but it is still judicial decisions based on case-specific moral instincts, which again may undermine consistency. The judicial workarounds can not substitute the systematical legislation[14]. Otherwise, the absence of legislative guidance renders such decisions unpredictable and morally unstable.[15]
Therefore, although judicial creativity can play a role in adapting outdated legislation, the archaic terms in OAPA 1861 hinders the principled or moral development of defence of consent.
Conclusion
This essay critically discusses the reason for the difficulty of making a principled or moral development for the defence of consent after the OAPA 1861 has been successfully applied for many years. The essay finally finds the moral inconsistency in judicial reasoning on consent, and the structural outdated legislation in the OAPA 1861 and its impact on the rule of consent are two major obstacles hindering a unified and consistent standard for the defence of consent.
Reference
Book
Ashworth A and Horder J, Principles of Criminal Law (7th edn, Oxford University Press 2013)
Duff RA, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007)
Herring J, Criminal Law: Text, Cases, and Materials (8th edn, Oxford University Press 2016)
Horder J, ‘R v Brown and the Defeat of the Harm Principle’ (1992) 2 Legal Studies 334
Horder J, Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2022)
Lacey N, ‘Responsibility and Modernity in Criminal Law’ (2001) 9(3) Journal of Political Philosophy 249
Law Commission, Reform of Offences Against the Person: A Modern Legal Framework (Law Com No 361, 2015)
Ormerod D and Laird K, Smith, Hogan and Ormerod’s Criminal Law (16th edn, Oxford University Press 2021)
Padfield N, ‘The Offences Against the Person Act 1861: A Patchwork of Incoherence’ (2012) Criminal Law Review 395
Simester A, ‘Legislative Inertia and Doctrinal Dynamism’ (2010) 126 Law Quarterly Review 376
Williams G, Textbook of Criminal Law (2nd edn, Stevens 1983)
Cases
R v BM [2018] EWCA Crim 560
R v Brown [1993] 2 All ER 75
[1] Jeremy Horder, Ashworth’s Principles of Criminal Law (9th edn, OUP 2022)
[2] R v Brown [1993] 2 All ER 75
[3] R v BM [2018] EWCA Crim 560
[4] Andrew Ashworth, Principles of Criminal Law (7th edn, OUP 2013) 22
[5] Antony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007)
[6] Jeremy Horder, ‘R v Brown and the Defeat of the Harm Principle’ (1992) 2 Legal Studies
[7] Jonathan Herring, Criminal Law: Text, Cases, and Materials (8th edn, Oxford University Press 2016) 571
[8] Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens 1983)
[9] Law Commission, Reform of Offences Against the Person: A Modern Legal Framework (Law Com No 361, 2015) para 1.3
[10] Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens 1983)
[11] David Ormerod and Karl Laird, Smith, Hogan and Ormerod’s Criminal Law (16th edn, OUP 2021)
[12] Nicola Lacey, ‘Responsibility and Modernity in Criminal Law’ (2001) 9(3) Journal of Political Philosophy 249
[13] Andrew Simester, ‘Legislative Inertia and Doctrinal Dynamism’ (2010) 126 Law Quarterly Review
[14] Nicola Padfield, ‘The Offences Against the Person Act 1861: A Patchwork of Incoherence’ (2012) Criminal Law Review 395
[15] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th edn, OUP 2013)
